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Rogers v. Rogers


February 11, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-1120-07B.

Per curiam.



Argued January 14, 2008

Before Judges Collester and C.S. Fisher.

Following a trial, a final restraining order (FRO) was entered in favor of plaintiff against her father pursuant to the Prevention of Domestic Violence Act of 1991 (the Act), N.J.S.A. 2C:25-17 to -35. In this appeal, defendant argues that the trial judge should have granted his motion for a new trial, claiming that he was prejudiced by defects in the process that led to the entry of the FRO. We reject these arguments and affirm.

The record reveals that plaintiff, who was then eighteen years old, filed a complaint pursuant to the Act. She alleged that on January 6, 2007, her father, a Jersey City police officer, assaulted her at her place of employment, an auto parts store in Hazlet.

The final hearing commenced on January 9, 2007. On that day Judge Ronald Lee Reisner heard testimony from both parties. Neither was represented by counsel.

Plaintiff described how she and defendant had argued outside and then inside the auto parts store. She testified that their heated discussion ended when defendant pushed her against a shelf with "his hands around my throat." Defendant then gave his version of what occurred. He testified that during the argument plaintiff "told me to go fuck myself," following which he "grabbed her on her shoulders," following which another employee physically intervened. After hearing this testimony, the judge adjourned the matter because he wanted to obtain photographs taken by the Hazlet Police Department.

On January 16, 2007, the court heard testimony from a Hazlet police officer, who described his involvement in the investigation and who authenticated photographs that were taken of plaintiff. The photographs, according to the judge's findings, revealed scratch marks and redness around plaintiff's neck.*fn1

Plaintiff also called Walter Anderson, another of the store's employees, who testified that he witnessed the parties' verbal argument and then saw defendant place his hands around plaintiff's neck and shoulder area. Anderson described how he intervened, how both he and defendant fell to the floor during the ensuing struggle, and how defendant grabbed and ripped Anderson's shirt around the collar. After they got up from the floor, defendant tackled Anderson and pinned him to the floor. Within a few minutes, the police arrived, separated defendant from Anderson, obtained statements, and photographed both plaintiff and the store.

At the conclusion of the second day's proceedings, Judge Reisner rendered a thorough oral decision in which he described in detail the circumstances that we have only briefly outlined. He found by a preponderance of the evidence that defendant committed a simple assault upon his daughter:

[Defendant] was angry over the tone of voice that she used. He thereafter confronted her, physically grabbed her throat. He did so intentionally.

. . . [T]he police officers' prompt response to the scene and photographs demonstrate the truthfulness of the plaintiff's statements. [Plaintiff's version was also corroborated by Anderson] who got in between the defendant and the plaintiff as well as [by] the photographs of the scene and the noticeable injuries to the plaintiff. All establish by a preponderance of the believable and credible evidence that the defendant assaulted the plaintiff.

The [c]court is mindful that the defendant is a police officer. But his statement that he only placed his hands on the shoulders of his daughter [is] not corroborated by the physical evidence of the photographs taken by [members of] the police department who are clearly impartial witnesses in this case. [The] photographs . . . substantiate the plaintiff's version beyond any doubt whatsoever.

As a result of these and other findings, which we need not recount here, Judge Reisner entered the FRO.*fn2

In unsuccessfully moving for a new trial, defendant complained of a number of alleged procedural defects. He reprises some of those contentions in this appeal. We find these arguments to be without merit.

First, defendant complains of the speed with which the matter came before the trial court for a final hearing. We reject this. The Act requires that a final hearing be held "within 10 days of the filing of a complaint." N.J.S.A. 2C:25-29(a). The Supreme Court has recognized that to the extent this provision may at times "preclude[] meaningful notice and an opportunity to defend, [it] must yield to due process requirements," and, therefore, does not preclude a trial judge from granting a continuance so that a party may retain counsel and prepare for trial. H.E.S. v. J.C.S., 175 N.J. 309, 323 (2003). This right to a continuance in appropriate circumstances, however, is not self-executing. A party who has not had an adequate opportunity to prepare for a final hearing must affirmatively seek a continuance. Here, defendant never asked the trial judge for an adjournment for any reason at any time from the commencement of the hearing on January 9 until its conclusion on January 16. Accordingly, we reject his argument that the trial judge erred in failing to grant an adjournment that was never sought.

Second, defendant argues that he was entitled to a new trial because the judge did not advise him regarding the retention of counsel. However, as Judge Reisner correctly observed in denying defendant's motion for a new trial, this was a civil case and neither the federal or state constitution nor the Act itself provided defendant with the right to counsel. Certainly, H.E.S. indicates that a litigant's request for an adjournment in order to secure counsel would be governed by due process principles and no doubt would have been readily granted here if requested. But, again, defendant never expressed a desire to retain counsel at any time prior to the entry of the FRO. Because the judge was under no obligation to advise defendant, and because defendant made no request in this regard,*fn3 we find no error.

Third, defendant argues that the judge erred in failing to permit him to cross-examine his daughter until after he had given his own direct testimony and after she was given an opportunity to rebut what he had said. We find no merit in this argument. Trial judges are permitted substantial leeway in the ordering of proofs. N.J.R.E. 611(a).*fn4 Moreover, the nature of these types of proceedings demonstrates the propriety of the very approach taken by the judge here.

A Family Part judge assigned to handle domestic violence matters normally is required to dispense with dozens of such matters on a daily basis. Each comes before the judge with a complaint, a temporary restraining order, and little if anything more. Because the Act does not require or permit the filing of a responsive pleading, the judge has no way of knowing as the hearing commences whether the plaintiff's factual contentions are even in dispute or, if so, to what extent. Accordingly, it makes good sense for the judge -- who often will conduct the examination of the witnesses when parties are unrepresented, as is often the case -- to hear the parties' version of the events to ascertain those facts that are in dispute before allowing cross-examination. In that way, the focus of the trial is narrowed to material factual disputes, and the cross-examination by the pro se litigants may then be limited to those material facts and not to trivial disputes that might otherwise consume the scarce judicial resources of our family courts.

This was the precise approach taken by Judge Reisner. He swore in the parties and heard plaintiff's version, followed by defendant's version. The judge then heard plaintiff's response to defendant's version and offered the parties the right to cross-examine. There was no abuse of the judge's discretion in ordering the proofs in this matter.*fn5 Indeed, the absence of prejudice is demonstrated by the fact that when asked whether he wished to cross-examine plaintiff, defendant attempted to ask only about an unrelated incident in order to challenge plaintiff's credibility.*fn6

Fourth, defendant argues that the evidence did not permit a finding of a relationship sufficient to invoke the Act's jurisdiction. The Act permits the entry of a final restraining order in favor of a "victim of domestic violence," N.J.S.A. 2C:25-29(b)(1), which is defined as including, among others, a "person who is 18 years of age or older . . . who has been subjected to domestic violence by . . . any other person who is a present or former household member," N.J.S.A. 2C:25-19(d). Although this definition incorporates former household members, defendant relies on case law that has concluded that a lengthy span of time since the parties resided together negates a finding that the Act encompasses their relationship. In this regard, defendant expressly relies upon Sisco v. Sisco, 296 N.J. Super. 245 (Ch. Div. 1996), and presumably on our decision in Jutchenko v. Jutchenko, 283 N.J. Super. 17 (App. Div. 1995), upon which Sisco relied, and the testimony of plaintiff that, as a result of her parents' divorce in 2003, plaintiff and defendant had not resided in the same household for five years. We reject this contention.

The hiatus in the parties' residence in the same household pales in comparison to the facts in Sisco, where the plaintiff-daughter had not resided with the defendant-father for "more than fifteen years," 296 N.J. Super. at 246, and the facts in Jutchenko, where the parties were adult brothers who had not resided in the same household for twenty years, 283 N.J. Super. at 20-21. Moreover, the date when the parties last resided in the same household in these circumstances did not signal a termination in their relationship. As defendant testified, he had been engaged in therapy with plaintiff's younger brother in order to regain visitation rights. He acknowledged in his testimony that plaintiff also participated in this therapy as early as two months before the act of domestic violence. Despite the fact that they had not been residents in the same household for approximately five years, the parties' involvement in therapy demonstrated that there had not been a sufficient break in their relationship as to deprive plaintiff of the status of "victim of domestic violence."

As we have held, the issue turns not only on the length of the hiatus but on a qualitative analysis, which includes, among other things, whether the victim, "at the time of the precipitating event, [was] subjected to potential abusive and controlling behavior related to and arising out of the past domestic relationship." Tribuzio v. Roder, 356 N.J. Super. 590, 597 (App. Div. 2003). The record reflects not only that the parties were engaged in therapy a mere two months prior to the act of domestic violence but also that the assault was generated, as Judge Reisner found, by defendant's attempt to control the tone of their argument. These circumstances were sufficient to entitle plaintiff to the protections provided by the Act. We thus find no merit in defendant's contention, which was never raised until he moved for a new trial, that the Act had no application to the circumstances alleged in plaintiff's complaint.

We find insufficient merit in defendant's other arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).


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